Archive - 2009

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009)

This case arises from an insurance dispute following damage to Bray & Gillespie’s (“B&G”) resort properties from Hurricanes Charley, Frances, and Jeanne.  B&G was represented by Anderson, Kill & Olick, P.C. (“AKO”) in connection with the submission of insurance claims for the damage.  B&G, with the assistance of AKO, gathered documents, including electronically stored information (“ESI”) to support those claims.  Relevant ESI was downloaded in its native format, scanned, and loaded to a hard drive (“Target Hard Drive”).  The ESI was then converted to TIFF images using a program called Extractiva, which also captured the metadata from the ESI.  Those images and metadata were then uploaded into the Introspect database and the Target Hard Drive was put in storage.  AKO provided copies of the information to Lexington, in paper form and on discs, in support of B&G’s insurance claims.  Coverage could not be agreed upon, and on February 13, 2007, B&G filed suit.

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Smith v. Slifer Smith & Frampton/Vail Assocs. Real Estate, LLC, 2009 WL 482603 (D. Colo. Feb. 25, 2009)

Plaintiffs, as representatives of an estate, retained defendants, including broker Peter Seibert, to assist in selling a piece of the estate’s property.  The property eventually sold, on defendants’ recommendation, for approximately $2.8 million.  83 days later, defendants assisted in reselling the property to a development company for $7.2 million.  On March 19, 2006, plaintiffs’ counsel contacted defendants and informed them he was conducting an investigation into the sale.  On November 2, 2006, plaintiffs filed suit alleging inter alia breach of statutory duties, negligence per se, negligent misrepresentation, and fraud.

Plaintiffs served discovery requests on April 9 and July 30, 2007.  Included, were specific requests for electronically stored information (“ESI”) and for inspection and sampling of certain of defendants’ computers.  Defendants’ responses indicated that they had searched three primary sources of potentially responsive ESI: Seibert’s old office computer, his home computer, and his laptop.

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Indep. Newspapers, Inc. v. Brodie, 2009 WL 484956 (Md. Feb. 27, 2009)

Finding plaintiff/appellee failed to show a valid cause of action for defamation, the appellate court vacated an order requiring appellant to identify the alleged anonymous defamers and remanded the case for entry of an order granting appellant’s motion to quash.

In this defamation case, plaintiff/appellee Brodie sought to enforce a subpoena to compel the production of the identities of several persons who posted allegedly defamatory statements about the plaintiff, anonymously, on defendant/appellant Independent Newspaper’s (“Independent”) Internet forum.  The circuit court granted Brodie’s motion and ordered Independent to identify the anonymous forum participants.  Independent appealed.  Finding that the circuit court abused its discretion when it denied Independent’s motion for a protective order because “Brodie had not pleaded a valid defamation claim against any of [the anonymous forum participants],” the appellate court vacated the prior judgment and remanded the case with instructions to grant defendant’s motion for a protective order and quash the subpoena. 

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Ak-Chin Indian Cmty. v. U.S., 85. Fed. Cl. 397 (Fed. Cl. Jan. 14, 2009)

Ak-Chin Indian Cmty. v. U.S., 2009 WL 320333 (Fed. Cl. Feb 5, 2009) (Denying Defendant’s Motion for Reconsideration but amending prior order in 85 Fed. Cl. 397 to delete certain findings of fact).

In this case, the court granted plaintiff’s motion to compel the defendant to organize and label its responses to plaintiff’s requests for production according to category, and to identify the specific documents from which responses to interrogatories could be derived.

Defendant responded to plaintiff’s discovery requests by making the requested information available for inspection.  The information could allegedly be located by querying a database containing data about the contents of each box stored at a particular location.  Plaintiff objected to defendant’s response and requested the information be organized and labeled according to the categories of its requests.  Finding that the documents offered for inspection were not maintained “in the usual course of business” and thus defendant’s response did not comply with RCFC 34, the court ordered defendant to organize and label the documents as requested by plaintiff.  The court also held that defendant had not met the requirements to properly rely upon RCFC 33(d) in responding to interrogatories where the rule allowed the production of business records as a response only where the burden of ascertaining the answer would be substantially the same for either party.

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Proctor & Gamble Co. v. S.C. Johnson & Son, Inc., 2009 WL 440543 (E.D. Tex. Feb 19, 2009)

In this case, following the court’s decision that all documents were to be produced electronically in TIFF format with Optical Character Recognition (“OCR”), defendant asserted that the cost of processing the documents should be shifted to the plaintiff.  In support of its assertion, defendant claimed that the cost of conversion to OCR would likely exceed $200,000 and that “it does not itself seek to use the OCR process, and any extra expense would be incurred on it behalf solely for Plaintiff’s convenience.”  Defendant offered no evidence in support of its estimate, however, and the court’s own research indicated the estimated cost appeared to be “somewhat inflated.”  Nor did defendant deny that the OCR process would make the documents easier to examine, thus reducing costs for attorney time.

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Brookdale Univ. Hosp. & Med. Ctr., Inc. v. Health Ins. Plan of Greater N.Y., 2009 WL 393644 (E.D.N.Y. Feb. 13, 2009)

In this case, the court was asked to reconsider its prior order compelling defendants to return privileged documents inadvertently produced by the plaintiff.  The court declined to overturn its ruling regarding documents specifically identified by the plaintiff as inadvertently produced and addressed by the court’s prior order.  However, as to documents not identified at the time of the order, the court declared any privilege waived.

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Kvitka v. Puffin Co., LLC, 2009 WL 385582 (M.D. Pa. Feb. 13, 2009)

Finding plaintiff intentionally discarded her laptop despite a duty to preserve it, the court ordered dismissal of her claims and an adverse inference instruction as to defendants’ cross-claims.

After years of advertising in defendants’ magazine, plaintiff Kvitka, an antique doll dealer, received notice that defendants were terminating her right to advertise because of complaints about her business practices, including that she disparaged other advertisers and dealers. In the parties’ subsequent discussions, defendants revealed their possession of a file containing several complaints about Kvitka as well as 15 pages of emails, written by her, in which she disparaged other advertisers.

Unable to resolve the conflict out of court, Kvitka filed suit.  In the course of discovery, it was revealed that despite Kvitka’s counsel’s receipt of correspondence from defendants specifically requesting preservation of Kvitka’s computer and emails, Kvitka had nonetheless discarded her laptop.

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